Dec. 7, 2020 by Bill Funk

HHS Proposes to Sunset Regulations It Fails to Review Retrospectively

This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.

Every President since Jimmy Carter has called on agencies to make retrospective reviews of their regulations. President Clinton’s Executive Order 12866 required agencies to create a program of periodic review of existing significant regulations. More recently both Presidents Obama in E.O. 13563 and Trump in E.O. 13771 likewise have required agencies to engage in retrospective reviews. Numerous commentators, not the least of which is Professor and former OIRA director Cass Sunstein, have extolled the potential value of retrospective reviews. And the Administrative Conference of the United States has issued recommendations providing support for agencies to review their existing regulations. Indeed, the Regulatory Flexibility Act (RFA) requires agencies to make a retrospective review of 10-year-old regulations that “have a significant economic impact upon a substantial number of small entities.” 5 U.S.C. § 610(a). Moreover, the RFA even provides for judicial review of an agency’s failure to comply with this requirement. 5 U.S.C. § 611.

Nevertheless, everyone who has studied what agencies in fact have done have concluded that agencies have largely failed in complying with …

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Dec. 7, 2020

HHS Proposes to Sunset Regulations It Fails to Review Retrospectively